In a way, the Food and Drug Administration’s (FDA) ban on flavored e-cigarettes and vaping ended in a compromise. As of Feb. 6, convenience stores and other retailers can no longer carry or display cartridge-based e-cigarettes or vaping pods in flavors other than menthol and tobacco.
“Our wholesale supplier along with our individual brand representatives were very helpful in managing product inventory levels throughout the entire dialogue,” said Lisa Dell Alba, president and CEO of Bethlehem, Pa.-based Square One Markets Inc., which operates more than 10 c-stores in Pennsylvania. “We were able to keep product available until the deadline, allowing our eligible customers to purchase what they needed.”
Disposables Vs. ENDS
However, the FDA is allowing the continued sale of flavored disposable e-cigarettes that are completely self-contained as well as flavored e-liquids used in open vaping systems. According to The Wall Street Journal, disposables account for an estimated 3% of sales for all electronic nicotine delivery systems (ENDS). Examples include blu, STIG, Puff Bar and NJOY, which has voluntarily halted the distribution of fruit flavors.
“While we would have preferred there be no new flavor restrictions, in the end, we not only managed to protect open systems, but opened a vital dialogue with Health & Human Services officials about streamlining the FDA’s pre-market review process,” said Gregory Conley, president of the American Vaping Association.
ENDS producers have until May 12 to submit a pre-market tobacco application to seek FDA approval for future sales.
In theory, if flavored cartridge- or pod-based ENDS gain approval, they could return to c-store shelves, though that’s yet to be determined, and decisions could be more than a year out.
Another FDA concession was to abandon its earlier proposal of regulating ENDS to 21-only locations, or mandating c-stores create 21-only areas. The National Association of Convenience Stores (NACS) lobbied against this provision, claiming it favored certain retailer classes over others.
“It would appear that the FDA heeded our concerns regarding a level playing field among retailers and adjusted their final guidance policy accordingly,” said Lyle Beckwith, NACS senior vice president of government relations.
Like other tobacco products, though, ENDS still face resistance from lawmakers.
“At the state level, we are likely to see flavor ban bills introduced in at least 25 states with Democrats attempting to paint the Trump Administration’s final policy as a gift to the e-cigarette industry,” said Conley.
Indeed, last month Maryland’s comptroller announced a state ban on disposable e-cigarettes.
Perhaps the best news is that the category finished 2019 with impressive totals: more than 70% in dollar sales growth and nearly a 60% jump in unit sales per IRI data.
Update: The U.S. House of Representatives on Friday, Feb. 28, passed H.R. 2339, a bill that would ban nationwide sales of all flavored tobacco and vaping products, with few exceptions, as well as outlaw any remote sales not done face-to-face, effectively doing away with online purchases of any kind. The House bill’s ban on flavors includes menthol and applies not only to vaping products, but to all tobacco products, including smokeless or chewing tobacco as well as cigars. So called “premium” cigars — defined by the bill as any item costing no less than $12.00 — are exempt from the ban.